Hon’ble Imtiyaz Murtaza, J.—In the present appeal judgment and order dated 20.9.2007 passed by Additional Sessions Judge, Court No. 2, Barabanki in Sessions Trial No. 103-A of 1998 has been challenged by means of which appellant Kamlesh has been convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 5000/- and in default of payment of fine, further imprisonment for six months and under Section 323/34 IPC to undergo six months’ R.I.

2. Briefly stated, according to the prosecution case, on 6.4.1997 at about 5-20 p.m in village Chilauki, P.S. Safdarganj, the informant’s brother Shiv Kumar was grazing cattle at the outskirts of the village in Kasahi grove. Kamlesh and Durbal, who were also present there, accused Shiv Kumar that he had scared away the bees on account of which they were got stung by them. Over this matter, some altercation took place which was seen by Arvind Kumar alias Devari and Suresh. Kamlesh and Durbal went towards their house threatening Shiv Kumar. Shiv Kumar being frightened was returning home. Having heard about the said altercation from Suresh, the informant, his mother Sundara, Ajay Kumar and Santram were going towards the grove. When they reached near the house of Mahadeo, they saw that Kamlesh carrying a country-made pistol and Durbal carrying a knife were threatening Shiv Kumar. The informant and others challenged them, whereupon Kamlesh, on the exhortation of Durbal, fired from his pistol at Shiv Kumar which hit his stomach. The informant’s mother tried to apprehend Kamlesh, but Durbal assaulted her with knife and caused injuries. Thereafter Kamlesh and Durbal ran away towards northern side of the village. They took the injured to Barabanki hospital, where during medical treatment he died due to fire-arm injury.

3. The report of the incident was registered at P.S at 8 p.m on 6.4.1997. The investigating Officer recorded the statements of the witnesses, prepared the site-plan and completed all formalities.

4. Post-mortem examination on the body of Shiv Kumar was conducted by Dr. Brijendra Pal Azad, who noted the following ante-mortem injury:

Gunshot wound 4 cm x 4 cm x cavity deep over left side abdomen, 8 cm above and outer to umbilicus. Margins inverted. (Intestines were protruding out of the wound.) Wound of entry. Direction downwards and medially.

In the opinion of doctor, death was cause due to shock and haemorrhage as a result of ante-mortem injury described above.

Smt. Sundara was medically examined on 6.4.1997 at 10 p.m by Dr. D.R.Singh, who found the following injuries on her person:

1. One lacerated wound on chin 3 cm x .1 cm, fresh blood present.

2. One lacerated wound on upper lip inner side middle region.

3. One lacerated wound 1 cm x .5 cm at tip of left middle finger. Fresh blood present.

In the opinion of doctor, all the injuries were simple, caused by blunt objection and their duration was fresh.

After conclusion of the investigation, charge-sheet was submitted against the accused under Section 302/323 IPC.

5. The case was committed to the Court of Sessions. The Sessions Judge framed charges under Sections 302/34 and 323/34 IPC against the accused. The accused denied the charges and claimed to be tried.

Accused Kamlesh thereafter absconded and his trial was separated.

6. We have heard Sri S.H. Ibrahim, Advocate for the appellant and Sri Jyotinjay Verma, AGA for the State and perused the entire evidence on record.

7. The prosecution, in order prove its case examined P.W.1 Ram Naresh, P.W.2 Dr. D.R. Singh and P.W.3 Smt. Sundara. Before the evidence of P.W.3 could be completed appellant had absconded and his trial was separated. The trial of co accused Durbal was completed. After the appearance of the appellant the evidence of P.W.3 was completed and thereafter remaining evidence of the prosecution witnesses was not recorded. The Sessions Judge has accepted the certified copies of the testimonies of remaining witnesses recorded in the t